Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 1 of 16 Rev. 10/25/13
County:
Highway:
Limits:
Fed. Proj. No.:
ROW CSJ No.:
Const. CSJ No.:
PROJECT UTILITY ADJUSTMENT AGREEMENT
(Developer Managed)
Agreement No.: -U-
THIS AGREEMENT, by and between
, hereinafter identified as the "Developer", and
hereinafter identified as the "Owner”, is as follows:
,
WITNESSETH
WHEREAS, the STATE OF TEXAS, acting by and through the Texas Department of Transportation,
hereinafter identified as “TxDOT”, is authorized to design, construct, operate, maintain, and improve
turnpike projects as part of the state highway system throughout the State of Texas, all in conformance
with the provisions of Chapters 201, 203, 222, 223, 224, and 228 Texas Transportation Code, as
amended; and
WHEREAS, the TxDOT proposes to construct a toll project identified as the ___________ Project (the
“Project”); and
WHEREAS, pursuant to that certain Development Agreement by and between TxDOT and the
Developer with respect to the Project (the “DA”), the Developer has undertaken the obligation to design,
construct, finance, operate and maintain the Project and adhere to all requirements in the DA; and
WHEREAS, the Developer’s duties pursuant to the DA include causing the relocation, removal or other
necessary adjustment of existing utilities impacted by the Project (collectively, “Adjustment”), subject to
the provisions herein; and
WHEREAS, the Project may receive Federal funding, financing and/or credit assistance; and
WHEREAS, the Developer has notified the Owner that certain of its facilities and appurtenances (the
"Owner Utilities") are in locational conflict with the Project (and/or with the “Ultimate Configuration” of
the Project), and the Owner has requested that the Developer undertake the Adjustment of the Owner
Utilities as necessary to accommodate the Project (and the Ultimate Configuration) and Owner agrees that
the “Project” will be constructed in accordance with §203.092, Texas Transportation Code, as amended,
Rule 21.23 of Title 43 Tex. Admin. Code, and 23 CFR 645 Subpart A (Utility Relocations, Adjustments
and Reimbursement); and
WHEREAS, the Owner Utilities and the proposed Adjustment of the Owner Utilities are described as
follows [insert below a description of the affected facilities (by type, size and location) as well as a brief
description of the nature of the Adjustment work to be performed (e.g., “adjust 12” waterline from
approximately Highway Station 100+00 to approximately Highway Station 200+00”)]:
; and
WHEREAS, the Owner recognizes that time is of the essence in completing the work contemplated
herein; and
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 2 of 16 Rev. 10/25/13
WHEREAS, the Developer and the Owner desire to implement the Adjustment of the Owner Utilities by
entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements of
the parties hereto and other good and valuable consideration, the receipt and sufficiency of which being
hereby acknowledged, the Developer and the Owner agree as follows:
1.
Preparation of Plans. [Check one box that applies:]
The Developer has hired engineering firm(s) acceptable to the Owner to perform all
engineering services needed for the preparation of plans, required specifications, and
cost estimates, attached hereto as Exhibit A (collectively, the “Plans”), for the proposed
Adjustment of the Owner Utilities. The Developer represents and warrants that the
Plans conform to the most recent Utility Accommodation Rules issued by the Texas
Department of Transportation (“TxDOT”), set forth in 43 Tex. Admin. Code Part 1,
Chapter 21, Subchapter C et seq., (the “UAR”). By its execution of this Agreement or
by the signing of the Plans, the Owner hereby approves the Plans and confirms that the
Plans are in compliance with the “standards” described in Paragraph 3(a)(4).
The Owner has provided plans, required specifications and cost estimates, attached
hereto as Exhibit A (collectively, the “Plans”), for the proposed Adjustment of the
Owner Utilities. The Owner represents and warrants that the Plans conform to the
UAR. By its execution of this Agreement, the Developer and the Owner hereby
approve the Plans. The Owner also has provided to the Developer a utility plan view
map illustrating the location of existing and proposed utility facilities on the
Developer’s right of way map of the Project. With regard to its preparation of the
Plans, the Owner represents as follows [check one box that applies]:
The Owner’s employees were utilized to prepare the Plans, and the charges
therefore do not exceed the Owner’s typical costs for such work.
The Owner utilized consulting engineers to prepare the Plans, and the fees for
such work are not based upon a percentage of construction costs. Further, such
fees encompass only the work necessary to prepare the Plans for Adjustment of
the Owner Utilities described herein, and do not include fees for work done on
any other project. The fees of the consulting engineers are reasonable and are
comparable to the fees typically charged by consulting engineers in the locale of
the Project for comparable work for the Owner.
2.
Review by TxDOT. The parties hereto acknowledge and agree as follows:
(a)
Upon execution of this Agreement by the Developer and the Owner, the Developer will
submit this Agreement, together with the attached Plans, to TxDOT for its review and
approval as part of a package referred to as a “Utility Assembly”. The parties agree to
cooperate in good faith to modify this Agreement and/or the Plans, as necessary and
mutually acceptable to all parties, to respond to any comments made by TxDOT thereon.
Without limiting the generality of the foregoing, (i) the Owner agrees to respond (with
comment and/or acceptance) to any modified Plans and/or Agreement prepared by the
Developer in response to TxDOT comments within fourteen (14) business days after
receipt of such modifications; and (ii) if the Owner originally prepared the Plans, the
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 3 of 16 Rev. 10/25/13
Owner agrees to modify the Plans in response to TxDOT comments and to submit such
modified Plans to the Developer for its comment and/or approval (and re-submittal to
TxDOT for its comment and/or approval) within fourteen (14) business days after
receipt of TxDOT’s comments. The Owner’s failure to timely respond to any modified
Plans submitted by the Developer pursuant to this paragraph shall be deemed the
Owner’s approval of same. If the Owner fails to timely prepare modified Plans which are
its responsibility hereunder, then the Developer shall have the right to modify the Plans
for the Owner’s approval as if the Developer had originally prepared the Plans. The
process set forth in this paragraph will be repeated until the Owner, Developer and
TxDOT have all approved this Agreement and accepted the Plans.
(b)
3.
The parties hereto acknowledge and agree that TxDOT’s review, comments, and/or
approval of a Utility Assembly or any component thereof shall constitute TxDOT's
approval of the location and manner in which a Utility Assembly will be installed,
adjusted, or relocated within the state highway right of way (the “ROW”), subject to the
Developer's and Owner's satisfactory performance of the Adjustment work in accordance
with the approved Plans. TxDOT has no duty to review Owner Facilities or components
for their quality or adequacy to provide the intended utility service.
Design and Construction Standards.
(a)
All design and construction performed for the Adjustment work which is the subject of
this Agreement shall comply with and conform to the following:
(1) All applicable local and state laws, regulations, decrees, ordinances and
policies, including the UAR, the Utility Manual issued by TxDOT (to the
extent its requirements are mandatory for the Adjustment necessitated by
the Project, as communicated to the Owner by the Developer, or TxDOT),
the requirements of the DA, and the policies of TxDOT;
(2) All Federal laws, regulations, decrees, ordinances and policies applicable to
projects receiving Federal funding, financing and/or credit assistance,
including without limitation 23 CFR 645 Subparts A and B;
(3) The terms of all governmental permits or other approvals, as well as any
private approvals of third parties necessary for such work; and
(4) The standard specifications, standards of practice, and construction methods
(collectively, “standards”) which the Owner customarily applies to utility
facilities comparable to the Owner Utilities that are constructed by the
Owner or for the Owner by its contractors at the Owner’s expense, which
standards are current at the time this Agreement is signed by the Owner,
and which the Owner has submitted to the Developer in writing.
(5) Owner agrees that all service meters must be placed outside of the State
ROW.
(b)
Such design and construction also shall be consistent and compatible with (i) the
Developer’s current design and construction of the
Project, (ii) the "Ultimate
Configuration" for the Project, and (iii) any other utilities being installed in the same
vicinity. The Owner acknowledges receipt from the Developer of Project plans and
Ultimate Configuration documents as necessary to
comply with the foregoing. In
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 4 of 16 Rev. 10/25/13
(c)
case of any inconsistency among any of the standards referenced in this Agreement,
the most stringent standard shall apply.
The plans, specifications, and cost estimates contained in Exhibit A shall identify and
detail all utility facilities that the Owner intends to abandon in place rather than remove,
including material type, quantity, size, age, and condition. No facilities containing
hazardous or contaminated materials may be abandoned, but shall be specifically
identified and removed in accordance with the requirements of subparagraph (a). It is
understood and agreed that the Developer shall not pay for the assessment and
remediation or other corrective action relating to soil and ground water contamination
caused by the utility facility prior to the removal.
4.
Responsibility for Costs of Adjustment Work. With the exception of any Betterment
(hereinafter defined), the parties shall allocate the cost of any Adjustment between themselves as
identified in Exhibit A and in accordance with § 203.092, Texas Transportation Code. An
allocation percentage may be determined by application of an eligibility ratio, if appropriate, as
detailed in Exhibit A.
5.
Construction by the Developer.
6.
(a)
The Owner hereby requests that the Developer perform the construction necessary to
adjust the Owner Utilities and the Developer hereby agrees to perform such construction.
All construction work hereunder shall be performed in a good and workmanlike manner,
and in accordance with the Plans (except as modified pursuant to Paragraph 16).
(b)
The Developer shall retain such contractor or contractors as are necessary to adjust the
Owner Utilities.
(c)
The Developer shall obtain all permits necessary for the construction to be performed by
the Developer hereunder, and the Owner shall cooperate in that process as needed.
Reimbursement of Owner’s Indirect Costs.
(a)
Developer agrees to reimburse the Owner its share of the Owner’s indirect costs (e.g.,
engineering, inspection, testing, ROW) as identified in Exhibit A. When requested by the
Owner, monthly progress payments will be made. The monthly payment will not exceed
80% of the estimated indirect work done to date. Once the indirect work is complete,
final payment of the eligible indirect costs will be made. Intermediate payments shall not
be construed as final payment for any items included in the intermediate payment.
(b)
The Owner’s indirect costs associated with Adjustment of the Owner Utilities shall be
developed pursuant to the method checked and described below [check only one box]:
(1)
Actual related indirect costs accumulated in accordance with (i) a work
order accounting procedure prescribed by the applicable Federal or State
regulatory body, or (ii) established accounting procedure developed by the
Owner and which the Owner uses in its regular operations (either (i) or (ii)
referred to as “Actual Cost”) or,
(2)
The agreed sum of $
(“Agreed Sum”) as supported by the analysis
of the Owner's estimated costs attached hereto as part of Exhibit A.
(c)
All indirect costs charged to the Developer by the Owner shall be reasonable and shall be
computed using rates and schedules not exceeding those applicable to similar work
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 5 of 16 Rev. 10/25/13
performed by or for the Owner at the Owner's expense. Developer’s performance of the
Adjustment work hereunder and payment of the Developer’s share of the Owner’s costs
pursuant to this Agreement, if applicable, shall be full compensation to the Owner for all
costs incurred by the Owner in Adjusting the Owner Utilities (including without
limitation costs of relinquishing and/or acquiring right of way).
7.
Advancement of Funds by Owner for Construction Costs.
(a)
Advancement of Owner’s share, if any, of estimated costs
Exhibit A shall identify all estimated engineering and construction-related costs,
including labor, material, equipment and other miscellaneous construction items.
Exhibit A shall also identify the Owner’s and Developer’s respective shares of the
estimated costs.
The Owner shall advance to the Developer its allocated share, if any, of the estimated
costs for construction and engineering work to be performed by the Developer, in
accordance with the following terms:
The adjustment of the Owner’s Utilities does not require advancement of funds.
The adjustment of the Owner’s Utilities does require advancement of funds and
the terms agreed to between the Developer and Owner are listed below.
[Insert terms of advance funding to be agreed between Developer and Owner.]
(b)
Adjustment Based on Actual Costs or Agreed Sum
[Check the one appropriate provision, if advancement of funds is required]:
The Owner is responsible for its share of the Developer’s actual cost for the
Adjustment, including the identified Betterment. Accordingly, upon completion
of all Adjustment work to be performed by both parties pursuant to this
Amendment, (i) the Owner shall pay to the Developers the amount, if any, by
which the actual cost of the Betterment (as determined in Paragraph 9(b)) plus
the actual cost of Owner’s share of the Adjustment (based on the allocation set
forth in Exhibit A) exceeds the estimated cost advanced by the Owner, or (ii) the
Developer shall refund to the Owner the amount, if any, by which such advance
exceeds such actual cost, as applicable.
The Agreed Sum is the agreed and final amount due for the Adjustment,
including any Betterment, under this Amendment. Accordingly, no adjustment
(either up or down) of such amount shall be made based on actual costs.
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 6 of 16 Rev. 10/25/13
8.
Invoices. On invoices prepared by either the Owner or the Developer, all costs developed using
the "Actual Cost" method described in Section 6(b)(1) shall be itemized in a format allowing for
comparisons to the approved estimates, including listing each of the services performed, the
amount of time spent and the date on which the service was performed. The original and three
(3) copies of each invoice, together with (1) such supporting information to substantiate all
invoices as reasonably requested, and (2) such waivers and releases of liens as the other party
may reasonably require, shall be submitted to the other party at the address for notices stated in
Paragraph 22, unless otherwise directed pursuant to Paragraph 22. The Owner and the Developer
shall make commercially reasonable efforts to submit final invoices not later than one hundred
twenty (120) days after completion of work. The Owner and the Developer hereby acknowledge
and agree that any costs not submitted to the other party within eighteen months following
completion of all Adjustment work to be performed by the parties pursuant to this Agreement
shall be deemed to have been abandoned and waived.
9.
Betterment and Salvage
(a)
For purposes of this Agreement, the term “Betterment” means any upgrading of an
Owner Utility being adjusted that is not attributable to the construction of the Project and
is made solely for the benefit of and at the election of the Owner, including but not
limited to an increase in the capacity, capability, efficiency or function of the adjusted
Utility over that provided by the existing Utility facility or an expansion of the existing
Utility facility; provided, however, that the following are not considered Betterments:
(i)
any upgrading which is required for accommodation of the Project;
(ii)
replacement devices or materials that are of equivalent standards although not
identical;
(iii)
replacement of devices or materials no longer regularly manufactured with the
next highest grade or size;
(iv)
any upgrading required by applicable laws, regulations or ordinances;
(v)
replacement devices or materials which are used for reasons of economy (e.g.,
non-stocked items may be uneconomical to purchase); or
(vi)
any upgrading required by the Owner’s written “standards” meeting the
requirements of Paragraph 3(d).
[Include the following for fiber optic Owner Utilities only:] Extension of an Adjustment
to the nearest splice boxes shall not be considered a Betterment if required by the Owner
in order to maintain its written telephony standards.
Any upgrading required by the Owner’s written “standards” meeting the requirements of
Paragraph 3(a)(4) shall be deemed to be of direct benefit to the Project.
(b)
It is understood and agreed that the Developer shall not pay for any Betterments and that
the Owner shall be solely responsible therefor. No Betterment may be performed
hereunder which is incompatible with the Project or the Ultimate Configuration or which
cannot be performed within the other constraints of applicable law, any applicable
governmental approvals, including without limitation the scheduling requirements
thereunder. Accordingly, the parties agree as follows [check one box that applies, and
complete if appropriate]:
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 7 of 16 Rev. 10/25/13
The Adjustment of the Owner Utilities pursuant to the Plans does not include any
Betterment.
The Adjustment of the Owner Utilities pursuant to the Plans includes Betterment
to the Owner Utilities by reason of [insert explanation, e.g. “replacing 12” pipe
with 24” pipe]:
. The Developer has provided to the Owner comparative
estimates for (i) all work to be performed by the Developer pursuant to this
Agreement, including work attributable to the Betterment, and (ii) the cost to
perform such work without the Betterment, which estimates are hereby approved
by the Owner. The estimated cost of the Developer’s work hereunder which is
attributable to Betterment is $
, calculated by subtracting (ii) from (i). The
percentage of the total cost of the Developer’s work hereunder which is
attributable to Betterment is
%, calculated by subtracting (ii) from (i),
which remainder is divided by (i).
(c)
If Paragraph 9(b) identifies Betterment, the Owner shall advance to the Developer, at
least fourteen (14) business days prior to the date scheduled for commencement of
construction for Adjustment of the Owner Utilities, the estimated cost attributable to
Betterment as set forth in Paragraph 9(b). Should the Owner fail to advance payment to
the Developer fourteen (14) business days prior to commencement of the Adjustment
construction, the Developer shall have the option of commencing and completing
(without delay) the Adjustment work without installation of the applicable Betterment. [If
Paragraph 9(b) identifies Betterment, check the one appropriate provision]:
The estimated cost stated in Paragraph 9(b) is the agreed and final amount due
for Betterment hereunder, and accordingly no adjustment (either up or down) of
such amount shall be made based on actual costs.
The Owner is responsible for the Developer’s actual cost for the identified
Betterment. Accordingly, upon completion of all Adjustment work to be
performed by both parties pursuant to this Agreement, (i) the Owner shall pay to
the Developer the amount, if any, by which the actual cost of the Betterment
(determined as provided below in this paragraph) exceeds the estimated cost
advanced by the Owner, or (ii) the Developer shall refund to the Owner the
amount, if any, by which such advance exceeds such actual cost, as applicable.
Any additional payment by the Owner shall be due within sixty (60) calendar
days after the Owner’s receipt of the Developer’s invoice therefor, together with
supporting documentation; any refund shall be due within sixty (60) calendar
days after completion of the Adjustment work hereunder. The actual cost of
Betterment incurred by the Developer shall be calculated by multiplying (i) the
Betterment percentage stated in Paragraph 9(b), by (ii) the actual cost of all work
performed by the Developer pursuant to this Agreement (including work
attributable to the Betterment), as invoiced by the Developer to the Owner.
(d)
If Paragraph 9(b) identifies Betterment, the amount allocable to Betterment in Owner’s
indirect costs shall be determined by applying the percentage of the Betterment calculated
in Paragraph 9(b) to the Owner’s indirect costs. The Owner’s invoice to the Developer
for the Developer’s share of the Owner’s indirect costs shall credit the Developer with
any Betterment amount determined pursuant to this Paragraph 9(d).
(e)
For any Adjustment from which the Owner recovers any materials and/or parts and
retains or sells the same, after application of any applicable Betterment credit, the
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 8 of 16 Rev. 10/25/13
Owner’s invoice to the Developer for its costs shall credit the Developer with the salvage
value for such materials and/or parts..
(f)
The determinations and calculations of Betterment described in this Paragraph 9 shall
exclude right of way acquisition costs. Betterment in connection with right-of-way
acquisition is addressed in Paragraph 15.
10.
Management of the Adjustment Work. The Developer will provide project management
during the Adjustment of the Owner Utilities.
11.
Utility Investigations. At the Developer’s request, the Owner shall assist the Developer in
locating any Utilities (including appurtenances) which are owned and/or operated by Owner and
may be impacted by the Project. Without limiting the generality of the foregoing, in order to help
assure that neither the adjusted Owner Utilities nor existing, unadjusted utilities owned or
operated by the Owner are damaged during construction of the Project, the Owner shall mark in
the field the location of all such utilities horizontally on the ground in advance of Project
construction in the immediate area of such utilities.
12.
Inspection and Acceptance by the Owner.
13.
(a)
Throughout the Adjustment construction hereunder, the Owner shall provide adequate
inspectors for such construction. The work shall be inspected by the Owner’s
inspector(s) at least once each working day, and more often if such inspections are
deemed necessary by Owner. Further, upon request by the Developer or its contractors,
the Owner shall furnish an inspector at any reasonable time in which construction is
underway pursuant to this Agreement, including occasions when construction is
underway in excess of the usual forty (40) hour work week and at such other times as
reasonably required. The Owner agrees to promptly notify the Developer of any
concerns resulting from any such inspection.
(b)
The Owner shall perform a final inspection of the adjusted Owner Utilities, including
conducting any tests as are necessary or appropriate, within five (5) business days after
completion of construction hereunder. The Owner shall accept such construction if it is
consistent with the performance standards described in Paragraph 3, by giving written
notice of such acceptance to the Developer within said five (5) day period. If the Owner
does not accept the construction, then the Owner shall, not later than the expiration of
said five (5) day period, notify the Developer in writing of its grounds for nonacceptance and suggestions for correcting the problem, and if the suggested corrections
are justified, the Developer will comply. The Owner shall re-inspect any revised
construction (and re-test if appropriate) and give notice of acceptance, not later than five
(5) business days after completion of corrective work. The Owner’s failure to inspect
and/or to give any required notice of acceptance or non-acceptance within the specified
time period shall be deemed acceptance.
(c)
From and after the Owner’s acceptance (or deemed acceptance) of an adjusted Owner
Utility, the Owner agrees to accept ownership of, and full operation and maintenance
responsibility for, such Owner Utility.
Design Changes. The Developer will be responsible for additional Adjustment design and
construction costs necessitated by design changes to the Project, upon the terms specified herein.
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 9 of 16 Rev. 10/25/13
14.
Field Modifications. The Developer shall provide the Owner with documentation of any field
modifications, including Utility Adjustment Field Modifications as well as minor changes
described in Paragraph 16(b), occurring in the Adjustment of the Owner Utilities.
15.
Real Property Interests.
(a)
The Owner has provided, or upon execution of this Agreement shall promptly provide to
the Developer, documentation acceptable to TxDOT indicating any right, title or interest
in real property claimed by the Owner with respect to the Owner Utilities in their existing
location(s). Such claims are subject to TxDOT’s approval as part of its review of the
Developer Utility Assembly as described in Paragraph 2. Claims approved by TxDOT as
to rights or interests are referred to herein as “Existing Interests”.
(b)
If acquisition of any new easement or other interest in real property (“New Interest”) is
necessary for the Adjustment of any Owner Utilities, then the Owner shall be responsible
for undertaking such acquisition. The Owner shall implement each acquisition hereunder
expeditiously so that related Adjustment construction can proceed in accordance with the
Developer’s Project schedules. The Developer shall be responsible for its share (as
specified in Paragraph 4) of the actual and reasonable acquisition costs of any such New
Interest (including without limitation the Owner’s reasonable overhead charges and
reasonable legal costs as well as compensation paid to the landowner), excluding any
costs attributable to Betterment as described in Paragraph 15(c), and subject to the
provisions of Paragraph 15(e); provided, however, that all acquisition costs shall be
subject to the Developer’s prior written approval. Eligible acquisition costs shall be
segregated from other costs on the Owner's estimates and invoices. Any such New
Interest shall have a written valuation and shall be acquired in accordance with applicable
law.
(c)
The Developer shall pay its share only for a replacement in kind of an Existing Interest
(e.g., in width and type), unless a New Interest exceeding such standard (i) is required in
order to accommodate the Project or by compliance with applicable law, or (ii) is called
for by the Developer in the interest of overall Project economy. Any New Interest which
is not the Developer’s responsibility pursuant to the preceding sentence shall be
considered a Betterment to the extent that it upgrades the Existing Interest which it
replaces, or in its entirety if the related Owner Utility was not installed pursuant to an
Existing Interest. Betterment costs shall be solely the Owner’s responsibility.
(d)
For each Existing Interest located within the final Project right of way, upon completion
of the related Adjustment work and its acceptance by the Owner, the Owner agrees to
execute a quitclaim deed or other appropriate documentation relinquishing such Existing
Interest to TxDOT, unless the affected Owner Utility is remaining in its original location
or is being reinstalled in a new location within the area subject to such Existing Interest.
All quitclaim deeds or other relinquishment documents shall be subject to TxDOT's
approval as part of its review of the Utility Assembly as described in Paragraph 2. For
each such Existing Interest relinquished by the Owner, the Developer shall do one of the
following to compensate the Owner for such Existing Interest, as appropriate:
(e)
(i)
If the Owner acquires a New Interest for the affected Owner Utility, the
Developer shall reimburse the Owner for the Developer’s share of the Owner’s
actual and reasonable acquisition costs in accordance with Paragraph 15(b),
subject to Paragraph 15(c); or
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 10 of 16 Rev. 10/25/13
(ii)
If the Owner does not acquire a New Interest for the affected Owner Utility, the
Developer shall compensate the Owner for the Developer’s share of the fair
market value of such relinquished Existing Interest, as mutually agreed between
the Owner and the Developer and supported by a written valuation.
The compensation provided to the Owner pursuant to either subparagraph (i) or
subparagraph (ii) above shall constitute complete compensation to the Owner for the
relinquished Existing Interest and any New Interest, and no further compensation shall be
due to the Owner from the Developer or TxDOT on account of such Existing Interest or
New Interest(s).
(f)
16.
The Owner shall execute a Utility Joint Use Acknowledgment (ROW-U-JUAA-DA) for
each Adjustment where required pursuant to TxDOT policies. All Utility Joint Use
Acknowledgments shall be subject to TxDOT approval as part of its review of the Utility
Assembly as described in Paragraph 2.
Amendments and Modifications. This Agreement may be amended or modified only by a
written instrument executed by the parties hereto, in accordance with Paragraph 16(a) or
Paragraph 16(b) below.
(a)
Except as otherwise provided in Paragraph 16(b), any amendment or modification to this
Agreement or the Plans attached hereto shall be implemented by a Utility Adjustment
Agreement Amendment (“UAAA”) in the form of Exhibit B hereto (TxDOT-DA-U-35ADM). The UAAA form can be used for a new scope of work with concurrence of the
Developer and TxDOT as long as the design and construction responsibilities have not
changed. Each UAAA is subject to the review and approval of TxDOT, prior to its
becoming effective for any purpose and prior to any work being initiated thereunder. The
Owner agrees to keep and track costs for each UAAA separately from other work being
performed.
(b)
For purposes of this Paragraph 16(b), "Utility Adjustment Field Modification" shall mean
any horizontal or vertical design change from the Plans included in a Utility Assembly
previously approved by TxDOT, due either to design of the Project or to conditions not
accurately reflected in the approved Utility Assembly (e.g., shifting the alignment of an 8
in. water line to miss a modified or new roadway drainage structure). A Utility
Adjustment Field Modification agreed upon by the Developer and Owner does not
require a UAAA, provided that the modified Plans have been submitted to TxDOT for its
review and comment. A minor change (e.g., an additional water valve, an added utility
marker at a ROW line, a change in vertical bend, etc.) will not be considered a Utility
Adjustment Field Modification and will not require a UAAA, but shall be shown in the
documentation required pursuant to Paragraph 14.
(c)
This Agreement does not alter and shall not be construed in any way to alter the
obligations, responsibilities, benefits, rights, remedies, and claims between the Developer
and TxDOT to design and construct the Project, including the Adjustment.
17.
Entire Agreement. This Agreement embodies the entire agreement between the parties and
there are no oral or written agreements between the parties or any representations made which are
not expressly set forth herein.
18.
Assignment; Binding Effect; TxDOT as Third Party Beneficiary. Neither the Owner or the
Developer may assign any of its rights or delegate any of its duties under this Agreement without
the prior written consent of the other party and of TxDOT, which consent may not be
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 11 of 16 Rev. 10/25/13
unreasonably withheld or delayed; provided, however, that the Developer may assign any of its
rights and/or delegate any of its duties to TxDOT or to any other entity engaged by TxDOT to
fulfill the Developer’s obligations, at any time without the prior consent of the Owner.
This Agreement shall bind the Owner, the Developer and their successors and permitted assigns,
and nothing in this Agreement nor in any approval subsequently provided by any party hereto
shall be construed as giving any benefits, rights, remedies, or claims to any other person, firm,
corporation or other entity, including, without limitation, any contractor or other party retained
for the Adjustment work or the public in general; provided, however, that the Owner and the
Developer agree that although TxDOT is not a party to this Agreement, TxDOT is intended to be
a third-party beneficiary to this Agreement.
19.
Breach by the Parties.
(a)
If the Owner claims that the Developer has breached any of its obligations under this
Agreement, the Owner will notify the Developer and TxDOT in writing of such breach,
and the Developer shall have 30 days following receipt of such notice in which to cure
such breach, before the Owner may invoke any remedies which may be available to it as
a result of such breach; provided, however, that both during and after such period TxDOT
shall have the right, but not the obligation, to cure any breach by the Developer. Without
limiting the generality of the foregoing, (a) TxDOT shall have no liability to the Owner
for any act or omission committed by the Developer in connection with this Agreement,
including without limitation any claimed defect in any design or construction work
supplied by the Developer or by its contractors, and (b) in no event shall TxDOT be
responsible for any repairs or maintenance to the Owner Utilities Adjusted pursuant to
this Agreement.
(b)
If the Developer claims that the Owner has breached any of its obligations under this
Agreement, the Developer will notify the Owner and TxDOT in writing of such breach,
and the Owner shall have 30 days following receipt of such notice in which to cure such
breach, before the Developer may invoke any remedies which may be available to it as a
result of such breach.
20.
Traffic Control. The Developer shall provide traffic control or shall reimburse the Owner for
the Developer's share (if any, as specified in Paragraph 4) of the costs for traffic control made
necessary by the Adjustment work performed by either the Developer or the Owner pursuant to
this Agreement, in compliance with the requirements of the Texas Manual on Uniform Traffic
Control Devices. Betterment percentages calculated in Paragraph 9 shall also apply to traffic
control costs.
21.
Notices.
Except as otherwise expressly provided in this Agreement, all notices or
communications pursuant to this Agreement shall be sent or delivered to the following:
The Owner:
Phone:
Fax:
The Developer:
Phone:
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 12 of 16 Rev. 10/25/13
Fax:
A party sending a notice of default of this Agreement to another party shall also send a copy of
such notice to TxDOT and the DA Utility Manager at the following addresses:
TxDOT:
TxDOT Department of Transportation
Attention: Donald C. Toner, Jr., SR/WA
125 E. 11th Street
Austin, Texas 78701-2483
Phone: (512) 936-0980
DA Utility Manager:
Any notice or demand required herein shall be given (a) personally, (b) by certified or registered
mail, postage prepaid, return receipt requested, or (c) by reliable messenger or overnight courier
to the appropriate address set forth above. Any notice served personally shall be deemed
delivered upon receipt, and any notice served by certified or registered mail or by reliable
messenger or overnight courier shall be deemed delivered on the date of receipt as shown on the
addressee's registry or certification of receipt or on the date receipt is refused as shown on the
records or manifest of the U.S. Postal Service or such courier. Any party may from time to time
designate any other address for this purpose by written notice to all other parties; TxDOT may
designate another address by written notice to all parties.
22.
23.
Approvals. Any acceptance, approval, or any other like action (collectively "Approval")
required or permitted to be given by either the Developer, , the Owner or TxDOT pursuant to this
Agreement:
(a)
Must be in writing to be effective (except if deemed granted pursuant hereto),
(b)
Shall not be unreasonably withheld or delayed; and if Approval is withheld, such
withholding shall be in writing and shall state with specificity the reason for withholding
such Approval, and every effort shall be made to identify with as much detail as possible
what changes are required for Approval, and
(c)
Except for approvals by TxDOT, and except as may be specifically provided otherwise in
this Agreement, shall be deemed granted if no response is provided to the party
requesting an Approval within the time period prescribed by this Agreement (or if no
time period is prescribed, then fourteen (14) calendar days), commencing upon actual
receipt by the party from which an Approval is requested or required, of a request for
Approval from the requesting party. All requests for Approval shall be sent out by the
requesting party to the other party in accordance with Paragraph 21.
Time.
(a)
Time is of the essence in the performance of this Agreement.
(b)
All references to “days” herein shall be construed to refer to calendar days, unless
otherwise stated.
(c)
No party shall be liable to another party for any delay in performance under this
Agreement from any cause beyond its control and without its fault or negligence (“Force
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 13 of 16 Rev. 10/25/13
Majeure”), such as acts of God, acts of civil or military authority, fire, earthquake, strike,
unusually severe weather, floods or power blackouts.
24.
Continuing Performance. In the event of a dispute, the Owner and the Developer agree to
continue their respective performance hereunder to the extent feasible in light of the dispute,
including paying billings, and such continuation of efforts and payment of billings shall not be
construed as a waiver of any legal right.
25.
Equitable Relief. The Developer and the Owner acknowledge and agree that delays in
Adjustment of the Owner Utilities will impact the public convenience, safety and welfare, and
that (without limiting the parties’ remedies hereunder) monetary damages would be inadequate to
compensate for delays in the construction of the Project. Consequently, the parties hereto (and
TxDOT as well, as a third party beneficiary) shall be entitled to specific performance or other
equitable relief in the event of any breach of this Agreement which threatens to delay
construction of the Project; provided, however, that the fact that specific performance or other
equitable relief may be granted shall not prejudice any claims for payment or otherwise related to
performance of the Adjustment work hereunder.
26.
Authority. The Owner and the Developer each represent and warrant to the other party that the
warranting party possesses the legal authority to enter into this Agreement and that it has taken all
actions necessary to exercise that authority and to lawfully authorize its undersigned signatory to
execute this Agreement and to bind such party to its terms. Each person executing this
Agreement on behalf of a party warrants that he or she is duly authorized to enter into this
Agreement on behalf of such party and to bind it to the terms hereof.
27.
Cooperation. The parties acknowledge that the timely completion of the Project will be
influenced by the ability of the Owner (and its contractors) and the Developer to coordinate their
activities, communicate with each other, and respond promptly to reasonable requests. Subject to
the terms and conditions of this Agreement, the Owner and the Developer agree to take all steps
reasonably required to coordinate their respective duties hereunder in a manner consistent with
the Developer’s current and future construction schedules for the Project.
28.
Termination. If the Project is canceled or modified so as to eliminate the necessity of the
Adjustment work described herein, then the Developer shall notify the Owner in writing and the
Developer reserves the right to thereupon terminate this Agreement. Upon such termination, the
parties shall negotiate in good faith an amendment that shall provide mutually acceptable terms
and conditions for handling the respective rights and liabilities of the parties relating to such
termination.
29.
Nondiscrimination. Each party hereto agrees, with respect to the work performed by such party
pursuant to this Agreement, that such party shall not discriminate on the grounds of race, color,
sex, national origin or disability in the selection and/or retention of contractors and consultants,
including procurement of materials and leases of equipment.
30.
Applicable Law, Jurisdiction and Venue. This Agreement shall be governed by the laws of the
State of Texas, without regard to the conflict of laws principles thereof. Venue for any action
brought to enforce this Agreement or relating to the relationship between any of the parties shall
be the District Court of Travis County, Texas or the United States District Court for the Western
District of Texas (Austin).
31.
Waiver of Consequential Damages. No party hereto shall be liable to any other party to this
Agreement, whether in contract, tort, equity, or otherwise (including negligence, warranty,
indemnity, strict liability, or otherwise,) for any punitive, exemplary, special, indirect, incidental,
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 14 of 16 Rev. 10/25/13
or consequential damages, including, without limitation, loss of profits or revenues, loss of use,
claims of customers, or loss of business opportunity.
32.
Captions. The captions and headings of the various paragraphs of this Agreement are for
convenience and identification only, and shall not be deemed to limit or define the content of
their respective paragraphs.
33.
Counterparts. This Agreement may be executed in any number of counterparts. Each such
counterpart hereof shall be deemed to be an original instrument but all such counterparts together
shall constitute one and the same instrument.
34.
Effective Date. This Agreement shall become effective upon the later of (a) the date of signing
by the last party (either the Owner or Developer) signing this Agreement, and (b) the date of
TxDOT’s approval as indicated by the signature of TxDOT’s representative, below.
APPROVED BY:
TEXAS DEPARTMENT OF
TRANSPORTATION
OWNER
[Print Owner Name]
By: ____________________________________
Authorized Signature
By: _____________________________________
Duly Authorized Representative
Printed
Name: Donald C. Toner, Jr. SR/WA
Director – Strategic Projects Right of Way
Strategic Projects Division
Texas Department of Transportation
Printed
Name: __________________________________
Title: ___________________________________
Date: ___________________________________
Date: ____________________________________
DEVELOPER
By: _____________________________________
Duly Authorized Representative
Printed
Name: __________________________________
Title: ___________________________________
Date: ___________________________________
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 15 of 16 Rev. 10/25/13
County:
ROW CSJ No.:
Const. CSJ No.:
Highway:
Limits:
Fed. Proj. No.:
EXHIBIT A
PLANS, SPECIFICATIONS, COST ESTIMATES AND ALLOCATION
Project Utility Adjustment Agreement (Developer Managed)
Texas Department of Transportation
Form TxDOT-DA-U-35-DM
Page 16 of 16 Rev. 10/25/13
County:
ROW CSJ No.:
Const. CSJ No.:
Highway:
Limits:
Fed. Proj. No.:
EXHIBIT B
UTILITY ADJUSTMENT AGREEMENT AMENDMENT
(TxDOT-DA-U-35A-DM)
Project Utility Adjustment Agreement (Developer Managed)